Sri Sri Madan Mohan Jiu Thakur And ... vs State Of West Bengal And Ors. on 6 March, 1989

Equivalent citations: (1989) 2 CALLT 174 HC

Author: P K Mukherjee

Bench: P K Mukherjee

JUDGMENT
Paritosh Kumar Mukherjee, J.

1. In this Writ Petition, the petitioners have challenged the applicability of the provisions of the West Bengal Estates Acquisition Act, 1953, in the absence of any requisite Notification Under Section 3(3) of the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958.

2. By the said provision of Section 3(3) of the Act of 1958, it has been provided as follows :

"3. Assimilation of State laws,--(1) All State laws which, immediately before the appointed day, extend to, or are in force in, the State of West Bengal, but do not extend to, or are not in force in, the transferred territories shall as from that day, extend to or, as the case may be, come into force in, the transferred territories:

Provided that the State law specified in Schedule I shall extend to the transferred territories subject to the amendment specified in the schedule.

(2) All State laws which, immediately before the appointed day, are in force in the while or any part of the transferred territories but not in the rest of West Bengal shall, on that day, stand repealed in the transferred territories :

Provided that such repeal shall not effect.

(a) the previous operation of any State law so repealed or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation, or liability acquired, accrued or incurred under any State law so repealed; or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any State law so repealed; or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege obligation, liability, penalty, forfeiture or punishment as aforesaid; and

(e) and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.

(3) Notwithstanding anything contained in Sub-sections (1) and (2), the State laws specified in Schedule II as in force in the whole or any Part of the transferred territories immediately before the appointed day shall continue in force therein after that day, and the State laws specified in Schedule III shall not extend to or come into force in the while or such part of the transferred territories, as the case may be :

Provided that the State law specified in item (16) of Schedule II as in force in the transferred territories immediately before the appointed day shall continue in force, after that day, only in the territory referred to in Clause (b) of Sub-section (1) of Section 3 of the Bihar and West Bengal (Transfer of Territories) Act, 1956 (40 of 1956) and the State laws specified in items (9) and (10) of Schedule III shall not extend to, or come into force in, such territory :

Provided further that, subject to the provisions of the proviso to Sub-section (2) and of Section 4, the State laws specified in Schedule II shall stand repealed or the State laws specified in Schedule III shall extend to, or come into force in, the transferred territories or any part thereof, with effect from such date or dates as the State Government may, by Notification issued in the Official Gazette from time to time, appoint in this behalf."

3. Mr. Sib Kumar Majumdar, learned Advocate, appearing in support of the Writ petition filed on behalf of the petitioner, deity, represented by sebaits, Kanai Lal Roy and others, placed the following facts for consideration of this Court.

4. The petitioner No. 1, being the deity, and other petitioners, being the sebaits of the deity, Sri Sri Madan Mohan Jiu Thakur, are the writ petitioners before this Court.

5. Long before the enforcement of the provisions of the West Bengal Estates Acquisition Act, 1953, and also the recommendation given by the Fout Commission on or about 20th March, 1918, area about 52.89 acres of land partly khas and partly tenanted were endowed in the name of the deity Sri Sri Madan Mohan Jiu Thakur absolutely and as such the properties vested absolutely in the deity and were recorded as absolute "debottar" in the last Settlement Record.

6. The father of the petitioners Nos. 1 to 4, Santiram Roy and father of the petitioners Nos. 5 and 6, Jayantilal Roy, were the sebaits of the said deity and their names were recorded, as sebaits of the said deity in the finally published record of rights.

7. The deity as well as the debottar lands were originally situated in the District Manbhum in the State of Bihar and as such the record of rights were prepared under the Chotonagpur Tenancy Act, 1908 and the tenancy was governed by the said Act.

8. Originally as the lands were situated in the District of Manbhum in the State of Bihar, the said lands came under the purview of the Bihar Land Reforms Act, 1950.

9. It is the case of the writ petitioners that the land held by the deity was never vested in the State of Bihar under the provisions of the Bihar Land Reforms Act 1950, as there was no ceiling for khas land under the said Bihar Land Reforms Act, 1950, as the only intermediary interest vested in the State of Bihar by stages.

10. After the enforcement of the provisions of the Bihar and West Bengal (Transfer of Territories) Act, 1956, a portion of the 'debottar' land of the deity was transferred from the State of Bihar to the State of West Bengal on and from 1st November, 1956. As a result, the seat of the deity remained in the original location in village Rajpura in the State of Bihar, in the newly constituted District of Dhanbad and a part of the 'debottar' lands concerned in the instant petition fell in the newly constituted District of Purulia in the State of West Bengal.

11. By virtue of the provisions of Section 43 read with Section 2 of the aforesaid Act, all the Bihar laws including enactments, regulation, Ordinance and Notifications, etc., which were applicable to the transferred territories before the appointed date of transfer, continued to be in force in the transferred territories after the said transfer, i.e., after November 1, 1956.

12. Accordingly, the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958, was passed on 24th September, 1958, and in the provisions of Section 3(3) of the said Act it has been specifically provided that the State Laws specified in Schedule III, which includes West Bengal Estates Acquisition Act, 1953, and the West Bengal Land Reforms Act, 1955, shall not extend into the transferred territories.

13. In the second proviso to Sub-section (3) of Section 3 of the said Act it has been laid down that State laws specified in Schedule III shall come into force in the transferred territories with effect from the date of notification in the official gazette under the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958.

14. It is the specific case of the writ petitioners that Chapter VIII of the West Bengal Estates Acquisition Act was added to the Parent Act by West Bengal Estates Acquisition (Second Amendment) Act of 1963.

15. Section 60 of the said Act provides that Chapter VIII shall come into force on such date and in such of the transferred territories as may be notified in the Official Gazette. A Notification bringing into effect the provision of Chapter VIII was issued on March 1, 1964, but there is no Notification under the provision of the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958.

16. According to the writ petitioners, unless there is a Parent Notification under the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958, bringing into force Chapter VIII of the West Bengal Estates Acquisition Act, 1953, the Notification of March 1, 1964, can have no legal effect and the provisions have no application to the 'debottar' properties concerned herein.

17. These facts have been stated in paragraphs 9 and 10 of the instant writ petition.

18. In dealing with the aforesaid paragraphs, the deponent, Bholanath Bhaumile, has merely stated that with regard to the statements made in paragraphs 4 to 10 of the writ petition he does not make any comment, that is, the contentions raised by the writ petitioners in the aforesaid two paragraphs are, in fact, admitted by the said deponent respondent.

19. Mr. Majumdar, learned Advocate for the petitioners has relied on the decision of this Court in the case of Anisur Rahaman and Anr. v. Jalilar Rahaman, reported in 1981(1) Calcutta High Court Notes, page 11, wherein dealing with the applicability of the Muslim Personal Law, this Court held that in view of the provisions of Cooch Behar (Assimilation of Laws) Act, 1950 (Central Act LXVII of 1950) and in view of the provisions of Section 3(2) of the Cooch Behar (Assimilation of State Laws) Act, 1950 (West Bengal Act LXVII of 1950), despite the provisions of Sub-section (1) of the said Section, Muslim personal Law of 1937 would not apply to the Mohammedan subjects of Cooch Behar till the State Government by a Notification appoints a date on and from which the said Law of 1937 shall come into force in Cooch Behar.

20. In that view of the matter and in view of the uncontroverted assertions made in the instant writ petition, in my view, this writ petition is entitled to succeed and I hold that in the absence of any requisite notification under Section 3(3) of the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958, bringing into force the provisions of West Bengal Estates Acquisition Act, 1953, by passing of the Notification, dated March 1, 1964, bringing into force Chapter VIII of the Estates Acquisition Act is of no legal effect and accordingly no proceeding enforcing the provisions of the West Bengal Estates Acquisition Act in respect of the 'debottar' property can be initiated.

21. In my view, the writ petition is entitled to succeed.

The Rule is made absolute.

There will be no order for costs.

22. But this will not prevent the respondents from proceeding with the "debottar" estate after taking recourse to the provisions in accordance with law.

23. This Court has not expressed any opinion on the merits otherwise of the adjudication, which is the subject matter of the present writ petition, and the same are kept open.